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Thoburn V Sunderland City Council Parliamentary Sovereignty Essay

The principle of parliamentary sovereignty asserts that Acts of UK Parliament are the highest form of law and prevents the judiciary adjudicating on the validity of primary legislation . As the conservative British constitutional theorist A. V. Dicey stated, "no one can lawfully override, derogate from, or set aside an Act of Parliament" . Dicey also claimed that UK courts couldn't strike down Acts of Parliament, as there are no external constraints on what the Parliament can do. However, Dicey was writing in the early twentieth century, and much has changed in international politics. Hence, the principle of parliamentary sovereignty would be greatly affected, especially when the UK joined the EEC on 1 January 1973.

The UK joining EEC led to several constitutional challenges for national courts with Community Law, making it unconvincing to insist that the UK still adheres to the principle of parliamentary sovereignty. The first principle of direct effect in the EU allows individuals EU rights directly before their national courts; hence national courts are under an obligation to apply EU law . The second principle states any national law in conflict with EU law is rendered inapplicable . The Court has said that the Treaty of Rome created "its own legal system which, on the entry into force of the Treaty, became an integral part of the legal system of the Member States and which their courts are bound to apply" . Therefore national law cannot detract from the supremacy of EU law. For example, Costa v Enel in 1964 raised the question of whether a national law enacted after Italy's accession to the Union could prevail over EU law was raised, and the Court came to the decision that the "strength of [EU] law cannot vary from one State to the other in favour of later internal laws without endangering the realisation of the aims envisaged by the Treaty." The CJEU then concluded that it was legally impossible for member States to enact conflicting domestic provisions because "the member States have restricted their sovereign rights albeit within limited spheres and have thus created a body of law applicable both to their nationals and to themselves. " This confirms the sovereignty of EU law over UK domestic law, hindering parliamentary sovereignty.

Costa clearly demonstrated the supremacy of EU law; however, two subsequent case laws Simmenthal and Internationale Handelsgesellschaft further bring out the precise scope and implications of EU law . Simmenthal addresses the implications of the supremacy principle for national courts , and came to the conclusion that it was the task of national courts to protect the rights conferred upon individuals by EU law . Domestic courts therefore had to "apply Union law in its entirety" . The Internationale Handelsgesellschaft stressed that the recurring principles in Simmenthal applies to all types of national law, including the provision of Member State's constitutions concerning human rights. The EU law itself recognized the fundamental rights common to the constitutional traditions of member states. As a result, the Union is powerless to breach them. This highlights the supremacy of EU law, thus undermining parliamentary sovereignty.

The judgement in Factortame confirms the priority of EU law in the UK. The UK Parliament had enacted the Merchant Shipping Act 1998, despite act 49 of TFEU, which entitles EU nationals to establish businesses in any EU state. Normally, parliamentary sovereignty would prevent the setting aside of primary legislation. The CJEU, however, reminded the Law Lords that the supremacy principle requires national courts to apply EU law over national law, and to ignore any national rule that would impede domestic courts . The House of Lords then issued an injunction disapplying the Merchant Shipping Act 1988 in order that the claimants could exercise their conflicting rights under the Treaty . In the EOC case , it is clear that the UK courts must permanently disapply Acts of Parliament that conflict with EU law . Lord Bridge then stated that it was a voluntary choice that the UK signs up for the Treaty and this jurisdiction was established before the UK joining the Union. The final judgement caused controversial issues in the UK, showing EU law sovereign to domestic law.

The cases mentioned shows parliamentary sovereignty being greatly undermined due to EU law supremacy. However, Wade's continuing theory holds the constitutional rule that establishes the sovereignty of the Parliament is a political but not legal rule . Therefore the Parliament cannot change the rule that ascribes sovereignty to it because that rule is not a law, but the peg 'upon which the whole system of legislation hangs' . Wade proposed that parliamentary sovereignty is fixed; therefore, there are no limitations upon its sovereignty, but can be decreased through non-legal means. He concludes that parliamentary sovereignty can be changed "only by revolution not by legislation" . Hence to Wade, Factortame is a judicial revolution, where the judges refused to do what the constitutional order required of them and instead viewed EU law as supreme law . However, Wade's theory does not accord with Lord Bridge's analysis in Factortame, as he implied that legislation, not a judge-led revolution constituted the death warrant of parliamentary sovereignty . Also, if Wade's theory is plausible, then any legislation can be removed by judicial whim. Therefore, Wade's view on parliamentary sovereignty can be questioned.

Some argue that the Parliament is capable of controlling certain aspects of legislative process. The ECA provides the view that any Parliament wishing to legislate national laws contrary to EU law would have to use express language indicating such an intention . An example that should express language is used would be in the Merchant Shipping Act 1988, when its usage could deprive the Spanish fishermen of their EU law rights . The absence of such language in the act explains why Parliament failed to revoke the claimants' EU law rights . But s2(4) of ECA states explicitly that UK law takes effect subject to EU law, hence reinforcing EU law supremacy over UK law. Lord Denning stated if Parliament were deliberately to attempt to act inconsistently with EU law and "[say] so in express terms then.it would be the duty of our courts to follow the statute of our Parliament." Despite this, if UK still remains as a member of the EU, it is forbidden from legislating contrary to it. However, EU law is mostly seen as a limit on Parliament's law-making authority, ruling out the façade that parliamentary sovereignty can override EU law if it choses to use express language. In Jackson v Attorney Journal, Lord Hope stated 'the supremacy of [Union] law restricts the absolute authority of Parliament to legislate as it wants in this area' . By enacting the ECA, the Parliament had limited its future legislative power. Laws LJ in Thoburn v Sunderland City Council said that the breadth of Parliament's legislative power is set by constitution not Parliament, and since defendant Thoburn violated the EU rule under "constitutional statute", implied repeal was impossible, contrary to the other statutes that the Parliament can expressly repeal. This leads to an emerging orthodoxy of whether the legislating capacity of Parliament is legal phenomenon or not.

Three theories regard the impact of EU law on parliamentary sovereignty. Theory one consists of the "continuing theory", where a "revolution" led to EU law reigning supreme in UK, destroying parliamentary sovereignty. Another theory would be viewing EU law as a formal limit on Parliament's freedom to enact law, and that Parliament is subject to the formal requirement that express language must be used if it wishes to derogate from EU law . However, I believe that EU law is a substantive limit on Parliament's freedom enacting law. The constitution, interpreted by courts in light of the ECA, ascribes priority to EU law over Acts of Parliament . Therefore, I conclude that I agree to the statement of EU law undermining parliamentary sovereignty.

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Thoburn v Sunderland City Council[1] (also known as the "Metric Martyrs case") is a UK constitutional and administrative law case, concerning the interaction of EU law and an Act of Parliament. It is important for its recognition of the supremacy of EU law and the basis for that recognition. Though the earlier Factortame had also referred to Parliament's voluntary acceptance of the supremacy of EU law, Thoburn put less stress on the jurisprudence of the ECJ and more on the domestic acceptance of such supremacy; Lord Justice Laws suggested there was a hierarchy of "constitutional statutes" that Parliament could only expressly repeal, and so were immune from implied repeal.[2]

Facts[edit]

The Weights and Measures Act 1985 section 1 provided that both the pound and the kilogram are equally legal units of measurement in the United Kingdom. In 1994, several statutory instruments came into force bringing the United Kingdom into compliance with Directive80/181/EEC which aimed to harmonise the use in the European Community of units of measurement. Amongst the measures enacted were the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 and the Units of Measurement Regulations 1994. Without modifying the basic principle in Section 1 of the 1985 Act that the pound and the kilogram enjoyed parity, the Order specified that the use of the pound as a primary indicator of measurement for trade would be illegal after 1 January 2000 and would be a criminal offence under Section 8 of the 1985 Act. The 1994 Regulations permitted the continued display of imperial measures until the end of 1999 so long as the metric equivalent also appeared alongside, and at least as prominently. The Units of Measures Regulations 1994 was introduced on the basis of Sections 2(2) and (4) of the European Communities Act 1972 which authorised Ministers to pass secondary legislation to bring the UK into closer compliance with its then obligations under EU law. This is a so-called Henry VIII clause.

In March 2001, Steve Thoburn, a greengrocer, was convicted at Sunderland Magistrates' Court for using weighing apparatus that did not comply with the 1985 Act. He had been warned on two occasions that his apparatus was illegal. Colin Hunt sold fruit and vegetables in Hackney, he displayed his prices by reference to imperial measures and was convicted at Thames Magistrates' Court in June 2001. Julian Harman, a greengrocer, and John Dove, a fishmonger, sold their goods by reference to imperial measures only at Camelford market in Cornwall, they were both convicted in August 2001 at Bodmin Magistrates' Court. Peter Collins sold fruit and vegetables in Sutton and unlike the other appellants, had not been convicted of an offence. Instead, he was contesting the terms of the market stall licence proposed by the legal authority which required metric measures to be used; Sutton Magistrates' Court had rejected his claim.[3]

Judgment[edit]

Magistrates' court[edit]

In the Sunderland Magistrates' Court Judge Bruce Morgan stated:[4]

All five appellants, called the "Metric Martyrs" in the press, contested the decisions against them by way of case stated before the Divisional Court of the Queen's Bench Division.

High Court[edit]

The appellants argued first that the fact that the kilogram and the pound were recognised as equally legal units – notwithstanding the 1994 modifications – operated as an implied repeal of Section 2(2) of the European Communities Act 1972 in respect of weights and measures regulation. The doctrine of implied repeal means that where provisions of one Act of Parliament are inconsistent or repugnant to the provisions of an earlier Act, the later Act abrogates the inconsistency in the earlier one. In this case, it was argued that by proclaiming the equal status and legality of metric and imperial measures, Parliament had wished to repeal the authorisation contained in the 1972 Act allowing Ministers to adopt secondary legislation in the field of weights and measures to comply with EU law. Consequently, the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 and the Units of Measurement Regulations 1994, both adopted on the basis of this authorisation, were now invalid. The Appellants also argued, relying on the persuasive precedent of the Australian High Court case of Goodwin v Phillips (1908), that implied repeal could work pro tanto, that is to say a later Act could carve out an exception to the operation of an earlier without prejudice to its operation in areas unaffected by the later statute. They also argued on the basis of authority from the Court of Appeal and Divisional Court in the 1930s that a consolidation statute could work an implied repeal in the same way as any other Act.[citation needed]

Dealing with the Factortame litigation the appellants argued that as implied repeal applied in those cases but had not been argued by the Attorney-General they were caught by the Rule in Warner's Case (1661) and were not binding authority.[citation needed]

The second argument concerned the nature of the authorisation contained in the European Communities Act 1972, what is known as a Henry VIII clause delegating to the Executive a power to amend primary and secondary legislation to achieve a certain aim. It was argued that the power to modify legislation only extends to legislation passed at the time the authorisation was made, and not future legislation.[citation needed]

The third group of arguments concerned public international law. Basing themselves on the Vienna Convention on the Law of Treaties the appellants argued that (1) the High Contracting Parties to the Treaty of Brussels (by which the United Kingdom joined the European Economic Community) should be fixed with knowledge of the constitutional principle whereby one Parliament could not bind its successors and (2) if the Treaty of Rome had the effect contended for by the respondents the relevant treaty provisions were void for conflict with the over-riding jus cogens principles of the sovereign equality of nations and entitlement to freedom from interference in their internal affairs under the rule whereby treaty provisions in conflict with the jus cogens are void.[citation needed]

For their part, the respondents argued that so long as the United Kingdom is a member of the European Union, the doctrine of Parliamentary sovereignty whereby Parliament is free to create or repeal any law must be disapplied in relation to matters concerning EU law where the principle of supremacy of EU law as expressed in the judgments of the European Court of Justice in Costa v. ENEL and Van Gend en Loos takes precedence.[citation needed]

Giving his judgment, Lord JusticeJohn Laws accepted that the appellants were correct in arguing that the 1985 Act provided for both the Imperial and metric systems to operate side by side. He also accepted that implied repeal could work pro tanto and that the Australian case relied upon by the appellants correctly stated the law of England. He held that the relationship between community and national law had to be judged exclusively by reference to national law.[citation needed]

Laws LJ went on to hold that there was no question of implied repeal as there was no inconsistency between the European Communities Act and the Weights and Measures Act, since there can be no inconsistency between a provision of an Act granting a Henry VIII power and the terms of legislation adopted in application of that power. Furthermore, to say that Henry VIII clauses could only operate vis-a-vis legislation which was already in existence at the time the clause was passed would be to place a limitation on the legislative powers of Parliament and run contrary to the doctrine of Parliamentary sovereignty. Given this primary finding, the Court's observations about how the doctrine of implied repeal might or might not apply to "constitutional statutes" were obiter dicta, albeit potentially significant, given the standing of Laws as a leading public law judge.[citation needed]

Notwithstanding that, the point has not been subject to much judicial elaboration since the Thoburn case. [5] In 2012, in BH v The Lord Advocate (Scotland),[6]Lord Hope said in paragraph [30] of the judgment "the Scotland Act can only be expressly repealed; it cannot be impliedly repealed; that is because of its ‘fundamental constitutional nature’."[7]

In disposing of the second argument Laws took the opportunity to outline a constitutional framework within which the competing and seemingly irreconciliable principles of Parliamentary sovereignty and EU supremacy could be accommodated. He began by stating that the exceptions which the common law had in recent years recognised to the doctrine of implied repeal could be explained as forming part of a new class or category of legislative provisions which cannot be repealed by mere implication. There is, in effect, a hierarchy of Acts of Parliament. He stated:

In this category of "constitutional statutes" Laws identified Magna Carta, the Bill of Rights 1689, the Acts of Union 1707, the Reform Acts, the Human Rights Act 1998, the Scotland Act 1998, the Government of Wales Act 1998 and the European Communities Act 1972. Such statutes are, because of their constitutional importance, to be protected from implied repeal and, whilst not entrenched in English law, can only be repealed by the express intervention of Parliament. Laws wrote that the question of whether the European Communities Act was affected by implied repeal had already been determined by the House of Lords in Factortame. In that case, the Merchant Shipping Act 1988 had arguably impliedly repealed Section 2(2) of the 1972 Act by authorising a discrimination contrary to Community law, but the Law Lords did not regard the 1988 Act as having had that effect.[8]

Having outlined the constitutional framework, Laws proceeded to apply it to establish the nature of the relationship between EU and English law. In his judgment, the correct analysis of this relationship requires four propositions:[8]

  1. Specific rights and obligations created by EU law are by virtue of the European Communities Act incorporated into national law and rank supreme over national law. Where there is an inconsistency between an EU law right or obligation and national law, the latter must be modified or abrogated, even where it is contained in an Act of Parliament.
  2. The European Communities Act is a constitutional statute and, as such, cannot be impliedly repealed.
  3. The category of constitutional statutes is derived from English law and not EU law.
  4. The legal basis of the United Kingdom's relationship with the EU rests on national law provisions and not EU law. Where an EU measure was seen to be contrary to a fundamental or constitutional right guaranteed by English law, there would be a question as to whether the European Communities Act was sufficient to incorporate the measure into national law.

Attempts to appeal further[edit]

The Appellants sought permission to appeal to the House of Lords, a certificate having been granted by the Divisional Court that the case raised an issue of general application and public importance, but leave to appeal was refused by the House of Lords after an oral hearing on grounds that they did not consider that the appeal would "give rise to points capable of reasonable argument".

After the House of Lords rejected the application for permission to appeal, the Appeal sought to petition the European Court of Human Rights on the grounds that the judgment in the House of Lords was a breach of Article 6 of the European Convention on Human Rights (fair trial). On 12 February 2004, a committee of three ECHR judges unanimously ruled that the application was inadmissible.[9] The reason for their ruling was:

Aftermath[edit]

In the event, because of later changes in EU and UK legislation, it continued to be lawful for traders to use imperial measures as "supplementary indications" alongside the required "primary" metric measures even after the end of 2009.[10][11]

See also[edit]

Notes[edit]

References[edit]

External links[edit]

So long as this country remains a member of the European Union then the laws of this country are subject to the doctrine of the primacy of community law... The passing of the [European Communities Act] 1972 meant that European legislation became part of our legislation.... This country... has joined this European club and by so doing has agreed to be bound by the rules and regulations of the club..."

In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental [...] And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b).

In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court found that they did not disclose any appearance of a violation of the rights and freedoms set out in the convention or its protocols.

  1. ^"[2002] 3 WLR 247, [2002] EWHC 195 (Admin), [2003] QB 151". 18 February 2002. 
  2. ^Craig, Paul; Grainne De Burca; P. P. Craig (2007). EU Law: Text, Cases and Materials (4th ed.). Oxford: Oxford University Press. pp. 369–370. ISBN 978-0-19-927389-8. 
  3. ^Facts taken from judgment of Divisional Court
  4. ^9 April 2001, Morgan, Bruce (9 April 2001). "District Judge Morgan's Judgment". 
  5. ^Editorial, Statute Law Review, Vol 28, issue 2, http://slr.oxfordjournals.org/content/28/2/iii.extract
  6. ^[2012] UKSC 24
  7. ^Adam Perry and Farrah Ahmed: Are Constitutional Statutes ‘Quasi-Entrenched’? Blog of the UK Constitutional Law Association
  8. ^ ab"[2002] 3 WLR 247, [2002] EWHC 195 (Admin), [2003] QB 151". 
  9. ^"Application no. 30614/02 THOBURN v. the United Kingdom". European Court of Human Rights. 12 February 2004. Retrieved 28 June 2009. 
  10. ^UK Parliament. Weights and Measures (Metrication Amendments) Regulations 2009 as made, from legislation.gov.uk.
  11. ^Prince, Rosa (16 December 2008). "Pint of beer and the metric mile safe after Europe backs down". The Telegraph. Retrieved 20 October 2014.